19TH SESSION OF THE ASSEMBLY OF STATES PARTIES
11 December 2020
Name of the Side Event: The Key to Unblocking Security Council Referrals: Vetoes & Atrocity Crimes (Co-sponsored by the Permanent Mission of Sierra Leone to the United Nations, the Permanent Mission of Costa Rica to the United Nations, The Kingdom of the Netherlands, and the International Center for Transitional Justice (ICTJ))
Report by: Alexandrah Bakker and Kristoffer Burck, Junior Research Associates and Tamia Brito, Research Associate PILPG-NL
Highlights:
The use of a veto in cases concerning atrocity crimes can be incompatible with international law, specifically jus cogens norms, the “Purposes and Principles” of the United Nations (UN) Charter, and treaty obligations.
The panelists agreed with Prof. Trahan’s proposal that, as a pathway to unblock the deadlock at the UN Security Council, the UN General Assembly could request an Advisory Opinion from the International Court of Justice, clarifying the legality of the use of vetoes before atrocity crimes.
Such a request requires coordinated efforts by like-minded states and civil society organizations.
Summary of the Event:
The event began with introductory remarks by Ambassador Alie Kabba, Permanent Representative of Sierra Leone to the UN. He pointed to the special importance of dialogue this year, with the health and economic crisis weighing heavily on the international community. Yet, Ambassador Kabba highlighted that cooperation is ever more crucial with regards to an older problem: the use of veto power by the five permanent members (P5) of the UN Security Council (UNSC). The African Union, having expressed discontent, demanded a reform of the UNSC to ensure a fair and regionally balanced system. H.E. Kabba mentioned that accountability for atrocity crimes is closely linked to the equitability of the UNSC and that the power of the veto should at least be democratized among all regions of the world to allow responsible use to engender good faith negotiations, accountability, and transparency.
Professor Jennifer Trahan proceeded to introduce the main issue. She laid out that the veto power used by the P5 in atrocity crimes (genocide, crimes against humanity, and war crimes) is at odds with fundamental components of the international legal system. She used the situations of South Africa, Rwanda, Darfur, Myanmar, and Syria to illustrate instances where vetoes blocked action or accountability. According to Professor Trahan, the signaling effect of these vetoes goes beyond the concrete situation and indicates to possible perpetrators around the world that they might be protected from prosecution. She then introduced her latest publication entitled ‘Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes’. In her publication, Prof. Trahan argues that veto power in situations of atrocity crimes is incompatible with international law on three grounds: 1) the protection brought by jus cogens norms prohibiting genocide and crimes against humanity, 2) the “Purposes and Principles” of the UN laid out in Articles 1 and 2 of the UN Charter, and 3) foundational international treaties. In particular, Prof. Trahan referred to the 1948 Genocide Convention and the 1949 Geneva Conventions, which require states, including the P5, to take reasonable action within their power to prevent atrocity crimes. While this due diligence obligation is difficult to quantify, Prof. Trahan considered that situations where at least nine members of the UNSC are prepared to take measures yet a P5 member blocks a resolution are to be understood as an antithesis to the due diligence obligation. She lastly provided three possibilities to move forward: 1) states should make these legal arguments against using the veto in cases of atrocity crimes in as many fora as possible, 2) the UNGA should issue a resolution reflecting the legal limitations of the use of vetoes in situations involving atrocity crimes, and 3) the UNGA should request an Advisory Opinion from the International Court of Justice (ICJ) on the legality of vetoes under these circumstances.
Ambassador Hans Corell, former Under-Secretary-General for Legal Affairs and legal counsel at the UN, agreed with Professor Trahan’s characterization of the problem and potential solutions. He reminded the audience that the UN is a remarkable organization, but its ability to act in the face of atrocity crimes is weakened by the Security Council’s dependence on the P5. He mentioned the prevention of any meaningful action in Syria due to two P5 members. He seconded Prof. Trahan’s suggestion that the UNGA should ask the ICJ for an Advisory Opinion to establish legal clarity. Ambassador Corell concluded by calling on states to acknowledge possible threats due to climate change and ensure that the UNSC is prepared to address future conflicts.
Justice Richard Goldstone, former Prosecutor of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, and Chair of the Independent Expert Review of the ICC and the Rome Statute System, started his comments by clarifying that a considerable number of atrocity crimes are not covered by direct ICC jurisdiction. While some justice might be better than no justice, he cautioned that the UNSC referrals of situations to the ICC could be an important mechanism to bridge this gap. However, due to vetoes by Russia and China, the UNSC has failed to refer the situation in Syria to the ICC, perpetuating impunity. Attempts by the UNGA to gather evidence, for instance through the International, Impartial and Independent Mechanism for Syria (IIIM), are of little value if the UNSC does not refer the situation to a court or special tribunal. Justice Goldstone described Prof. Trahan’s proposal for the UNGA to ask the ICJ for an Advisory Opinion as a constructive approach to achieve clarity on the legality of the veto in such situations.
Ambassador Allan Rock, former Minister of Justice and Attorney-General of Canada and former Canadian Ambassador to the UN, continued by pointing out that the prevention of atrocity crimes as a threat to peace and security is at the core of the UNSC’s mandate. After the failure to prevent genocide in Rwanda, states agreed to respond to these situations in a timely and decisive manner. Yet, according to Ambassador Rock, the reality in Myanmar and Syria seems different. In both cases, the UNSC did not exercise its authority to refer the situation to the ICC due to the threat of a veto. Ambassador Rock recalled that veto power was originally designed to apply in situations of substantial disagreement only and that P5 members should refrain from utilizing veto power in cases in which they are themselves involved. The political blockade allows for impunity for atrocity crimes and hurts the credibility of the UN as a whole. Ambassador Rock lauded the legal approach by Prof. Trahan as a pathway to challenge the application of the veto power in cases of atrocity crimes through the request of an ICJ Advisory Opinion. To follow this path, Ambassador Rock urged other member states to join forces within the UNGA.
With a focus on the situation in Syria, Prof. Trahan elaborated that the blockade of an ICC referral by a veto resulted in impunity for recorded crimes against humanity and war crimes committed by government forces and counter-government groups. The blockade further prevented the investigation of the alleged genocide committed by ISIS/Daesh against the Yezidi people, eliminating the potential deterring effect of such an investigation. Prof. Trahan clarified that while France and the UK are willing to refrain from using the veto in situations of atrocity crimes, the other three P5 members would not. She pointed out that her argument is legal, rather than political, as voluntary commitments are impracticable. Ambassador Rock added that there is virtually no political cost involved for France and the UK to commit to voluntary restraint, as they can rest assured that the other three permanent members would not give in to this commitment.
Ambassador Corell emphasized that international law has significantly developed since 1945 and that the UN Charter should be understood as a living document that requires interpretation in the current context. Measures such as veto power should, as Prof. Trahan explained, be understood in light of emerging jus cogens norms and treaty law. An authoritative opinion of the ICJ could help clarify the situation. Justice Goldstone added that the threat of a veto alone has immense discouraging effects and hinders resolutions even before they are brought to the floor. Yet, he acknowledged that bringing resolutions to a vote at least requires the vetoing power to explain its decision.
The session concluded with questions from the audience on the practicalities required for veto reform. In particular, the audience inquired into what reform should look like, what the consequences of an unlawful veto should be, and what steps are necessary to move towards an ICJ Advisory Opinion. Prof. Trahan replied that Charter amendments are themselves subject to vetoes and thus other proposals, such as Liechtenstein’s suggestion that every veto decision should be discussed in the UNGA, are necessary. Ambassador Rock added that the justifications of P5 states for their veto are of limited value and often evade real discussion. He remarked again that the merit of Prof. Trahan’s argument lies in the fact that it is legal and does not require the P5 members to be persuaded. Prof. Trahan added that an ICJ Advisory Opinion would make future concrete cases possible, thus opening the possibility to attribute responsibility to a state. She underlined that to obtain an Advisory Opinion, states, civil society organizations, and academics must all argue for the necessity of such a decision. Justice Goldstone noted that African states have changed their attitude towards referring situations to the ICC, and a majority now sees ICC referral as a tool to create equity. With the African and Latin American continents being denied a veto, they could be critical in efforts to refer this question to the ICJ. Ambassador Rock found it encouraging to see African states expressing a more positive attitude towards the Court and described the practical process of like-minded states joining forces to achieve a majority within the UNGA.
Asked about potential soft law instruments, Prof. Trahan clarified that the current French/Mexican initiative can be understood as soft law, but that her approach signifies a move to consider hard law. Several aspects of preventing atrocity crimes, including facets of the Responsibility to Protect (R2P) are already enshrined in hard law. These are exactly the aspects that can render an application of a veto in cases of atrocity crimes unlawful. In closing the event, Ambassador Corell and Justice Goldstone urged states to engage in diplomatic efforts to achieve support within the UNGA and they called upon the Assembly of State Parties to recognize this issue. Prof. Trahan concluded with a hopeful statement, underlining that like-minded states, NGOs, and responsible states indeed have an avenue to pursue.